The first two cases summarise fairly well the general principles
adopted by the courts. The remainder have been classified in accordance
with the grounds the tribunals have based their decision upon.
There is some overlap as the tribunals may have taken several grounds
into consideration. Each case revolves on its own facts and there
is no black and white rule in case law which determines whether an
employee should be allowed to return to work on a part-time basis.
Neither is the list exhaustive.
The European Court of Justice (ECJ) case of Bilka-Kaufhaus v Webber
von Hartz (1987). ECJ established that a requirement to work full-time
must correspond to a real need on the part of the employer and must
be appropriate and necessary to achieve the objective in question.
Although this case does not deal with the right to return to part-time
work, the principle applies equally to cases which do.
The case of Hampson v The Department of Education and Science
(1989). The Court of Appeal established that when assessing justifiability
one must make "an objective balance between the discriminatory
effect of the condition and the reasonable need of the party who applies
the condition".
Needs of the undertaking
Briggs v North Eastern Education and Library Board (1990)
Northern Ireland Court of Appeal (NICA). This case has a persuasive
value. Mrs Briggs was a teacher who had been promoted upon the
condition that she would assist with extra curricular activities,
namely badminton coaching. She later adopted a child and could no
longer pursue activities after school hours. The school refused to
let her teach at lunchtime because there was not enough time for the
pupils to eat, play badminton and get back to class. The NICA ruled
that this was not discriminatory as the badminton coaching in the
lunch hour would not be of full advantage to the girls whom it was
intended to benefit.
Muir v Sealink UK Limited (1984) Employment Tribunal (ET).
This is a case where an employee's original hours of work were from
8:55 to 16:45. The peak hours of her job were in the afternoon. However,
her hours of work were changed from 7:30 to 14:45 for a year before
her maternity leave because of a computer backlog. She asked
to return to work on this basis. Her employers refused. They argued
that those hours of work were only a temporary measure adopted
to deal with the problems caused by the backlog. The backlog problem
had been resolved and they needed her to work at peak hours. The tribunal
held that Mrs Muir's original working hours were her contractual working
hours. Her employers had shown good reasons to justify their requirement
that she should work those hours.
Need to work fixed hours
Oddbins Ltd v Robinson (1996) Employment Appeals Tribunal
(EAT). The EAT held that a manageress of Oddbins was entitled to ask
to work fixed hours despite the terms of her contract which stipulated
that she would be required to work "such hours as may be necessary".
The tribunal heard evidence from "New Ways to Work"
and found that the company's objections were weak. The company
had failed to consider jobsharing with an open mind. The business
needs did not outweigh the effect of the refusal to allow Mrs Robinson
to work fixed hours.
Terms of contract
Home Office v Holmes (1984) EAT. A single mother who
worked for the Immigration and Nationality Department (a part of the
Home Office) asked to return on a part-time basis after the birth
of her second child. There were 250 people working in her department
at the time. The Home Office refused on the basis that there were
no part-time posts available at her grade within the Department. In
the Home Office's opinion, she only had the right to return on the
same contractual terms as before, i.e. on a full-time basis. The EAT
upheld the tribunal's decision. The Department could accommodate part-time
work. In reaching this decision the EAT said "it is easy to imagine
other instances, not strikingly different from the present case, where
the result would not be the same. There will be cases where the requirements
for full-time staff can be shown to be sufficiently flexible as arguably
not to amount to a requirement or condition at all. There will be
cases where a policy favouring full-time staff exclusively within
a particular grade or department is found to be justified. There will
be cases where no actual or no sufficient detriment can be proved
by the employee. All such cases will turn upon their own particular
facts". The fact that she was working on a full-time basis
when she lodged her complaint with the tribunal did not undermine
her case.
Size of the undertaking
In Barrett v George Hotels Ltd (1987) ET, Mrs Barrett's request
to work part-time was refused on the basis that the efficiency of
the business would be affected. The tribunal upheld the refusal, holding
that "this was an office employing only three persons, each fully
occupied in his or her own work, and unable to cover for each other,
quite unlike a large government department".
Supervisory/disciplinary concerns
In Clymo v Wandsworth London Borough Council (1989) EAT, a
librarian wanted to job share with her husband once she came back
from adoption leave. Her husband's position in the library was of
a lower grade. The Council offered them to share the lower grade
position. The Council argued that her position could not be shared
because "junior staff needed one constant supervisor, so as to
know who to report to and because of the dangers of playing off joint
managers". The branch librarian controlled a substantial budget.
The Council also argued that a proper recruitment procedure would
need to be held if she was to job share. It would not be fair for
her husband to be promoted this way. The EAT upheld the decision.
In Ogilvie v Ross and Hall (1999) ET, the head veterinary
nurse of an animal hospital was allowed to return to work on a part-time
basis. After a few months, it became clear that discipline amongst
the other nurses was slacking. The tribunal held that she should return
to full-time hours.
Efficiency
Greater Glasgow Health Board v Carey (1987) EAT. A health
visitor wanted to return to part-time work after having a child. She
asked to work only on certain days of the week. The health board accepted
her request for part-time work but insisted that she should work half
a day every day. Mrs Carey wanted to work alternate days. The EAT
upheld the tribunal's decision that there was no indirect discrimination
on the basis that the health board needed to maintain administrative
efficiency of its service to its patients. The pattern of work was
necessary for the continuity of patient contact. In Nelson v Chesterfield
Law Centre (1995) EAT, a woman was refused the right to job share
on the basis that her position involved close collaboration with a
colleague. Further division was not desirable.
Effect on team work
Abbey Textiles Limited v Burgess (1997) EAT. A machinist was
refused a request to return on a part-time basis on the grounds that
her manager thought that part-time work and job sharing were not compatible
with team working. The EAT upheld the tribunal's decision. Mrs Burgess
could still be an effective member of the team. Her work was flexible
in the sense that she did not need to use a particular machine. If
she could not attend a team meeting, her colleagues could tell her
what had been discussed. Furthermore the meetings were held at different
times of day. She was therefore likely to be able to attend most of
them.
Training needs
Tabbernor v Prudential Insurance Company (1996) ET. Mrs Tabbernor's
employers agreed to let her return on a part-time basis. However,
they requested her to attend a three-week residential retraining course
before returning to work. She refused to do so. The company arranged
for a trainer to come over to Mrs Tabbernor's place of work.
Mrs Tabbernor would have had to take various assessment tests very
soon after she returned to work because of the limited availability
of the tutors. She complained that her revision would have to begin
before she returned from maternity leave. The tribunal considered
that the retraining request was justified and that Mrs Tabbernor's
employers had done all that could have reasonably been expected to
accommodate her.
Suitability of the position for job sharing
Burston v Superior Creative Services Limited (1985) ET. Mrs
Burston worked in a senior position as an export manager. She
spent three days a week working on the sales aspect of her job and
for the other two days she focused on general administration. When
she returned from maternity leave she asked to reduce her working
week from five to three days. Her employers refused on the grounds
that before she went on maternity leave, the sales levels were unsatisfactory.
They wanted her to spend more time on this area. Her employer could
not reasonably have been expected to recruit a part-time replacement
for the administration side of the job as her duties could
not be so clearly split.
Continuity of service essential
Eley v Huntley Diagnostics Limited (1996) EAT. In this
case a telephonist/ receptionist was refused part-time work on the
basis that client continuity would be affected. Her company manufactured
medical equipment which it sold over the telephone like a telesales
business. Her role as a receptionist was vital to the functioning
of the company and her salary was a reflection of her status. Her
position could not be shared because customer continuity had to be
maintained. Furthermore it would have cost the company too much to
train someone else to cover the hours she would not be working because
the business was so technical.
Costs to and resources of the employer
Bullen v HM Prison Service (1996) EAT. The prison governor
had no problem with job sharing in principle. However he/she was concerned
that unless a job sharer could be found his/her staffing budget would
be reduced as a consequence. No one wanted to share the job.
The governor then proposed a restructuring package but this was rejected
by other members of staff. The EAT upheld the tribunal's decision
that the focus should be on the financial and administrative needs
of this particular prison rather than the resources of a prison service
as a whole because of the remote location of the prison.
Resources of employee
In Sykes v JP Morgan (1999) ET, a woman's claim for indirect
discrimination failed on the basis that she admitted that she was
able to comply with the requirement to work from 9:00 to 18:15. She
was a high earner and had full-time nanny working for her. The tribunal
held "... Nor is there any authority in support of the proposition
that a woman may claim indirect discrimination where she is able,
in practice, to comply with the requirement or condition but chooses
not to do so, as opposed to a woman who is suffering physical or financial
hardship".
Ability to comply with the requirement to work full-time
The tribunal held in Burston v Superior Creative Services Ltd
(1995) ET found that it was not necessary for an employee to show
that it was absolutely impossible for her to comply with the requirement/condition.
All she needs to show is that she finds full-time work demanding
and exhausting in view of her childcare commitments and that she is
not able to continue working full-time.
Opposition in principle to job sharing/part-time work
Hicks v North Yorkshire County Council (1985) Central Office
of Employment Tribunals. The Council refused to split a teaching post
in two. It argued that it may be difficult for the school to
find a suitably qualified part-time teacher in the area. The tribunal
found that the Council's objection was simply a matter of principle
against part-time teachers. They had not had any problems
in the past to find suitable part-timers to cover for absent teachers.
Nature of adjustments required
In Guthrie v Royal Bank of Scotland plc (1986) ET, a bank's
refusal to allow a woman to return to part-time work on the basis
that it was not their practice to do so because it would disrupt the
working arrangement was not deemed a valid ground for refusal by the
tribunal because only a minor adjustment was required.
No need for job sharing policy
In Robertson and Griffith v Strathclyde Regional Council (1986)
ET, the Council refused to allow job sharing until a policy was agreed
with the trade union and put into operation. Lengthy negotiations
which had started three years earlier were still going on. In the
meantime, the Council authorised part-time work in certain offices.
As a result the tribunal held the Council's refusal was not justifiable.
Defective procedure
Marshall v Governing Body of Langtree Community School and Devon
County Council (2000) ET. Mrs Marshall was unable to return to
her head teacher post full-time following a period of maternity leave.
She asked to return on a job share basis. During her maternity leave,
an Ofsted inspection had identified the school as one with serious
weaknesses and as a result the Governors argued that firm and consistent
leadership was necessary to resolve the issues. This could only be
provided through a single person. The ET held that the Governors'
failure to consider whether the post could be undertaken on a part-time
basis meant that they had not justified the requirement to work full-time.
Mrs Marshall had therefore been discriminated against. It noted however
that had the Governing Body considered the part-time working condition,
as well as the job share option, it might have been able to show that
its decision was justifiable.
